Amazon Technologies, Inc. v. Shawn David / Tim Steven
Claim Number: FA1808001799866
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by David J. Diamond of Richard Law Group, Inc., Texas, USA. Respondent is Shawn David / Tim Steven (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <amazonprimecustomerservicenumber.com>, <amazonprimecustomerservicephonenumber.com>, and <amazonprimephonenumber.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 2, 2018; the Forum received payment on August 2, 2018.
On August 6, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <amazonprimecustomerservicenumber.com>, <amazonprimecustomerservicephonenumber.com>, and <amazonprimephonenumber.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 17, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 6, 2018 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to the attention of the following: postmaster@amazonprimecustomerservicenumber.com, and postmaster@amazonprimecustomerservicephonenumber.com and postmaster@amazonprimephonenumber.com. Also, on August 17, 2018, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 10, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant is one of the world’s largest online retailers.
Complainant uses the AMAZON PRIME mark to promote its goods and services.
Complainant holds a registration for the AMAZON PRIME mark, which is on file with the United States Patent and Trademark Office (“UPSTO”) as Registry No. 3,419,886, registered April 29, 2008, renewed June 19, 2017.
Respondent registered the domain names <amazonprimephonenumber.com>, <amazonprimecustomerservicenumber.com> and <amazonprimecustomerservicephonenumber.com> on January 8, 2018.
Each of the domain names is confusingly similar to Complainant’s AMAZON PRIME mark.
Respondent has not been commonly known by any of the domain names.
Complainant has not licensed or otherwise authorized Respondent to use the AMAZON PRIME mark in any manner.
Respondent’s use of the domain names does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Rather, Respondent uses the domain names to pass itself off as Complainant online so as to offer customer support services in competition with the business of Complainant.
Further, Respondent uses the domain names in furtherance of a phishing scheme or other illegal activity, such as for installing malware onto the computers of Internet users.
Respondent has no rights to or legitimate interests in any of the domain names.
Respondent’s use of the domain names disrupts Complainant’s business.
Respondent’s employment of the domain names creates confusion among internet users as to the possibility of Complainant’s association with them.
Respondent uses the domain names to acquire commercial gain.
Respondent knew of Complainant’s rights in the AMAZON PRIME mark when it registered the domain names.
Respondent registered and is using the domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain names were registered and are being used by Respondent in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
Preliminary Issue: Multiple Respondents
Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
In the instant proceedings, Complainant alleges that the contested domain names are effectively controlled by the same person or entity, which is operating under several aliases. Complainant specifically contends that:
a. all of the domain names were registered within one second of each other on the same date;
b. the WHOIS information for two of the domain names is identical;
c. all of the domain names have a similar verbal structure;
d. the web pages resolving from the domain names contain similar content; and
e. all of the resolving web pages are used for the same fraudulent scheme.
Inasmuch as no objection has been recorded as to any of these assertions, we conclude that Complainant has established a sufficient nexus among the three disputed domain names to justify treating all of them as being under common control by a single party. Accordingly, all respondents named in the Complaint will be identified in this proceeding for all purposes as a single domain name holder, denominated “Respondent.”
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the AMAZON PRIME service mark sufficient for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See, for example, Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration of a mark with the USPTO was sufficient to establish a UDRP complainant’s rights in that mark under Policy ¶ 4(a)(i)).
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here India). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the evidence of record that each of the challenged domain names, <amazonprimephonenumber.com>, <amazonprimecustomerservicenumber.com> and <amazonprimecustomerservicephonenumber.com>, is confusingly similar to
Complainant’s AMAZON PRIME service mark. Each incorporates the mark in its entirety, save only for the space between its terms, and each adds a generic term, either “customer service” or “phone” or “number,” all of which can be taken to relate to an aspect of Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain names, do not save them from the realm of confusing similarity under the standards of the Policy. See, for example, Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum January 22, 2016) (finding that the addition of a generic term and a gTLD to the mark of another in creating a domain name is insufficient to distinguish one from the other under Policy ¶ 4(a)(i)). As to the latter point, this is because every domain name requires a gTLD.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks both rights to and legitimate interests in the domain names <amazonprimephonenumber.com>, <amazonprimecustomerservicenumber.com> and <amazonprimecustomerservicephonenumber.com>, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must present a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain names. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶¶ 4(c) (i)–(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain names that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by any of the domain names <amazonprimephonenumber.com>, <amazonprimecustomerservicenumber.com> and <amazonprimecustomerservicephonenumber.com>, and that Complainant has not licensed or otherwise authorized Respondent to use the AMAZON PRIME mark in any manner. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Shawn David / Tim Steven,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain names so as to have acquired rights to or legitimate interests in them within the ambit of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the <chevron-europe.com> domain name where the relevant WHOIS information identified its registrant only as “Fred Wallace”). See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent attempts to pass itself off online as Complainant in order to promote the sale of its competing customer support services. This employment is neither a bona fide offering of goods or services by means of the domain names under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of them under ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain names as provided in those subsections of the Policy. See, for example, Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum August 22, 2017) finding no rights to or legitimate interests in a contested domain name under Policy ¶ 4(c)(i) or ¶ 4(c)(iii), and concluding:
The usage of Complainant’s … mark [in a confusingly similar domain name] … is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off .... As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name.
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the domain names
<amazonprimephonenumber.com>, <amazonprimecustomerservicenumber.com> and <amazonprimecustomerservicephonenumber.com>, which we have found to be confusingly similar to Complainant’s AMAZON PRIME service mark, to attempt to profit financially from the confusion thus caused among Internet users as to the possibility of Complainant’s association with the domain names and their resolving web sites. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain names. See CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum February 28, 2014) (finding that a respondent had engaged in bad faith registration and use of a domain name within the meaning of Policy ¶ 4(b)(iv) by employing a domain name that was confusingly similar to the mark of a UDRP complainant to attract Internet users to its own website where it sold competing insurance services). See also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017), finding, under Policy ¶ 4(b)(iv), bad faith registration and use of a domain name where:
Respondent registered and uses the … domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the AMAZON PRIME mark when it registered the domain names <amazonprimephonenumber.com>, <amazonprimecustomerservicenumber.com> and <amazonprimecustomerservicephonenumber.com>. This further shows Respondent’s bad faith in registering the domain names. See, for example, Minicards Vennootschap Onder Firma Amsterdam v. Moscow Studios, FA 1031703 (Forum September 5, 2007) (finding, under Policy ¶ 4(a)(iii), that a UDRP respondent registered a domain name in bad faith after concluding that that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name.")
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <amazonprimecustomerservicenumber.com>, <amazonprimecustomerservicephonenumber.com>, and <amazonprimephonenumber.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: September 14, 2018
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